Human Rights & Development Law Journal Volumes


MASTHEAD

ARTICLES
A Positive Right to Protection for Children by Tamar Ezer
Abstract | PDF
Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community by Megan M. Carpenter
Abstract | PDF

NOTES FROM THE FIELD
Trade, Monitoring, and the ILO: Working To Improve Conditions in Cambodia's Garment Factories by Kevin Kolben
Abstract | PDF
The Zimbabwean Human Rights Crisis: A Collaborative Approach to International Advocacy by Lorna Davidson & Raj Purohit
Abstract | PDF

NOTES
Managing Diversity in the European Union by Michael A. Becker
PDF

Articles


A Positive Right to Protection for Children by Tamar Ezer
Concepts that are useful in other areas of human rights break down in the context of children. Because children are dependent on adults for their development, they are an anomaly in the liberal legal order, which views negative rights as implying fully rational, autonomous individuals that can exercise free choice. This Article argues for a positive right to protection for children, rooted in dignity, by probing the problematic nature of the positive/negative rights duality and exploring alternate legal approaches to protecting children's rights in both international and comparative law. The adoption of positive rights for children would help assure adequate protection, which the current American legal regime, as typified by the case DeShaney v. Winnebago County Department of Social Services, fails to do.

Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community by Megan M. Carpenter
The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, particularly in light of the increasing globalization of markets, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. This Article argues that copyright laws can, and must, be expanded so as to maintain the vitality of, and protect, the creative artistic and literary works of indigenous cultures. The Article proposes three major changes to international copyright law: the incorporation of collective and communal notions of authorship, the expansion of the originality requirement to reflect these forms of authorship, and the application of limits on the duration of copyright protection in a broader community context. The Article further proposes that a variety of intellectual property mechanisms be drawn upon to provide special protection for "sacred" cultural works.

Notes from the Field


Trade, Monitoring, and the ILO: Working To Improve Conditions in Cambodia's Garment Factories by Kevin Kolben
The U.S.-Cambodia Bilateral Textile Trade Agreement, signed on January 20, 1999, was remarkable for its inclusion of a labor standards provision that created incentives for the Cambodian garment industry to bring itself into substantial compliance with international labor standards and Cambodian labor law. The labor standards provision provided the impetus for the creation of a novel program, to be operated by the International Labor Organization (ILO). This program combined trade-related incentives to enforce workers' rights with an unprecedented plan to have the ILO conduct factory-level monitoring of working conditions. This Article examines how the program was designed and implemented and evaluates the proposals and conceptions that preceded the final project document. This analysis provides a case study on how to construct and implement future programs that combine trade and factory monitoring to improve working conditions and enforce core labor rights along the global supply chain.

The Zimbabwean Human Rights Crisis: A Collaborative Approach to International Advocacy by Lorna Davidson & Raj Purohit by Lorna Davidson & Raj Purohit
Over the past several years, a serious human rights crisis has developed in Zimbabwe, where President Robert Mugabe employs repressive measures to cling to power. Civil society and human rights groups in Zimbabwe are among those who have come under attack by the government, and they face an extremely difficult challenge in bringing about positive change in the country. This article describes the development of the current crisis in Zimbabwe, focusing on the problems faced by local activists and organizations that seek to promote greater respect for human rights. It further discusses one recent initiative launched by the U.S.-based organization Human Rights First, which organized a consultative meeting of regional civil society groups in August 2003. The article addresses the role that can and should be played by international civil society organizations, which must be sensitive to the contextual dynamics particular to the Zimbabwean crisis and to the region. If they are to be in any way effective, such organizations must act in support of local actors and stronger regional networks.

The Complementary and Conflicting Relationship Between the Special Court for Sierra Leone and the Truth and Reconciliation Commission by Abdul Tejan-Cole
Most countries in transition from civil war face limited choices when imposing accountability for past atrocities. Some, like Mozambique, opt to grant unconditional amnesty. Other countries, like South Africa, have instituted a truth and reconciliation commission and granted limited amnesty, while yet others, like Rwanda, prosecute perpetrators of genocide, war crimes, and crimes against humanity. These solutions are not mutually exclusive. Following a ten-year, bloody war characterized by widespread killings, amputations, rape, slavery, enforced prostitution and extensive use of child soldiers, Sierra Leone has chosen a unique blend of institutional mechanisms. At first, the government purported to grant an "unconditional" amnesty to the perpetrators while establishing a Truth and Reconciliation Commission. When the agreement establishing the latter foundered, the government established a Special Court in addition to the Commission. Amnesty pardons all, the Commission seeks truth, reconciliation and healing for past wrongs, and the Court aims at prosecuting the most culpable perpetrators. This Note examines two of these seemingly conflicting mechanisms--the Truth and Reconciliation Commission and the Special Court. The Note compares the mandates of the respective bodies, as well as their basis, composition and jurisdiction and discusses their respective roles in Sierra Leone. The Note highlights several areas in which these bodies need to cooperate while maintaining their independence and emphasizes the need to define the relationship between the two institutions in order to preserve their effectiveness.

VOL. 7 Masthead


Maria Burnett

Articles Editor

Kenneth Chen

Technical Editor

Christina Craige

Book Reviews Editor

Amanda Ddmonds

Student Notes Editor

David Gamage

Articles Editor

Beth Hooton

Articles Editor

Abja Midha

Managing Editor

Elora Mukherjee

Notes from the Field Editor

Joanne Savage

Articles Editor

Malcolm Seymour

Editor-in-Chief

Katherine Southwick

Executive Editor

Heidee Stoller

Notes from the Field Editor

Eric Tam

Technical Editor

Tahlia Townsend

Executive Editor

Tina Tran

Notes from the Field Editor